SCATTERGORIES: Winning Asylum Claims Based on Particular Social
Group
Speakers: Dree Collopy, Benach Ragland LLP
Jason Dzubow, Dzubow & Pilcher, PLLC Patricia Minikon, Minikon Law, LLC
Moderator: Jumoke Oladapo, Ivylaw Law Office, LLC
AILA D.C. 2014 CONFERENCE
Introduction What is a Particular Social Group
(PSG)?
Evolution of PSG Legal Standard Matter of Acosta: common immutable
characteristic
Matter of C-A-; Matter of A-M-E-& J-G-U-: particularity and social
visibility (new prongs of PSG analysis)
Evolution of PSG Legal Standard Matter of S-E-G & Matter of
E-A-G-: Social visibility and particularity now
required
Evolution of PSG Legal Standard Circuit Courts Respond
1st, 2nd, 5th, 10th, 11th: Defer in whole or part Ahmed v. Holder, 611 F.3d 90 (1st Cir. 2010)
Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir.
2012) Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir.
2011) Velasquez-Otero v. U.S. Atty. Gen., 456 Fed. Appx.
822 (11th Cir. 2012) (unpublished)
Evolution of PSG Legal Standard Circuit Courts Respond
3rd, 7th, & 9th: Reject Social Visibility and Particularity in whole or part
Valdiviezo-Galdamez v. Atty. Gen., 663 F.3d 582 (3d Cir. 2011)
Evolution of PSG Legal Standard Circuit Courts Respond
3rd, 7th, & 9th: Reject Social Visibility and Particularity in whole or part
Gatimi v Holder, 578 F.3d 611 (7th Cir. 2009) Benitez-Ramos v. Holder, 589 F.3d 426 (7th
Cir. 2009) Cece v. Holder, 733 F.3d 662 (7th Cir. 2013)
Evolution of PSG Legal Standard Circuit Courts Respond
3rd, 7th, & 9th: Reject Social Visibility and Particularity in whole or part Henriquez-Rivas v. Holder, 707 F.3d
1081 (9th Cir. 2013)
Evolution of PSG Legal Standard Matter of M-E-V-G- &
Matter of W-G-R- Social Visibility now Social Distinction
Reaffirmed 3-part test
Evolution of PSG Legal Standard
3-Part Test for PSG Analysis (2014) 1. Common, immutable characteristic
2. Social distinction 3. Particularity
Current Trends in PSG Claims
Analysis for a PSG Claim
1. Identify a cognizable group under 3-part test
2. Prove membership in the group 3. Establish nexus between
persecution and membership in group
Analysis for a PSG Claim Identify a cognizable group under 3-
part test Challenges:
1. Increased Evidentiary Burden 2. PSG no longer parallel with other 4
grounds 3. Troubling particularity dicta
Analysis for a PSG Claim Identify a cognizable group under 3-
part test Challenges Cont’d:
4. Homogeneity of groups 5. Size of groups
6. Is meeting both social distinction and particularity possible?
Analysis for a PSG Claim Prove membership in the group
Analysis for a PSG Claim Nexus: establish past persecution
or a well-founded fear of persecution on account of that
membership
Analysis for a PSG Claim Nexus
“One Central Reason” Direct or Circumstantial Evidence
PSG “Hot Topics”
Gang-based PSG Claims Types of Gang-based claims – What has worked and what
hasn’t?
Types of Gang-based claims: Resistance to Recruitment
Witness or informant Family membership
Gender Former Gang membership
Gang-based PSG claims: Other Challenges
Nexus Internal Relocation
Gender-based PSG claims What has worked and what
hasn’t?
Types of Gender-based PSG claims FGM/FGC
Matter of Kasinga Forced Marriage
Repressive social norms/Honor Killings
Sex trafficking and forced prostitution Rape and sexual violence
Femicide
Types of Gender-based PSG claims Domestic Violence
Matter of R-A- & Matter of L-R- Matter of A-R-C-G-
Gender-based PSG claims Other Challenges
Nexus Government unable/unwilling to
protect Internal Relocation
Practice Pointers for PSG Claims
Practice Pointers Client should understand basis of
claim Other bases: FGM, DV, Prior harm as basis for “other serious harm” claim (8 CFR 208.13(b)(1)(iii)(B) or
humanitarian asylum claim 8 C.F.R. 208.13(b)(1)(iii)(A)
Practice Pointers
Client should understand basis of claim
Ask about FGM, DV at beginning Explain why you are asking about
sensitive issues
Practice Pointers Argue for case-by-case determination
based on: - specific facts
- evidence of record Be creative in formulating PSG
Practice Pointers Argue for case-by-case determination
Matter of E-F-H-L-: Alien entitled to present his case even if IJ/AO believes
proposed PSG does not qualify
Practice Pointers
Matter of Fefe: IJ cannot rely exclusively on I-589 to make decision Use a PSG that has been used before
Practice Pointers Use published decisions
Use decisions from your Circuit/other Circuits
Use unpublished decisions from list serves or Lexis/Westlaw
Practice Pointers Present multiple PSGs
1. Acosta Group 2. M-E-V-G- and W-G-R- Group
Tip: Inclusion of weak claim with strong one may weaken strong claim
Practice Pointers Establish your record with Evidence
Practice Pointers Establishing your record
1. Testimony and Affidavits 2. Use Experts for context 3. Documentary Evidence
Practice Pointers Testimony and Affidavits
Get to the point! The Goal: win asylum (not tell entire
life story) Evidence supportive of claim: prove
applicant’s statements
Practice Pointers Using Experts
Essential to provide proper context for PSG when claim cannot be
documented with internet research/precedent
Written report or in-person testimony
Practice Pointers Use Experts to Establish - Socio-political context
-Social distinction and particularity -Nexus
-Ability/willingness of state to protect -Relocation options
Practice Pointers Other Documentary Evidence
(background information) Passport; marriage certificates;
photos; School and work records & evidence of missed work or school;
Birth certificates of children; awards & certificates
Practice Pointers - Don’t forget other protected
grounds - Don’t forget about CAT – explain
pros/cons -Brief it!! Remember IJs and AOs
know basics
Practice Pointers Litigate like you may have to appeal
-Challenge BIA’s additional requirements to preserve issue
-Attempt to meet additional requirements
Practice Pointers On Appeal - Challenge the BIA
-Get help from the experts! -Don’t go it alone!
-Coordinate with other litigators: AILA, AIC, NGOs, law schools
Thanks for Attending!!